For over two centuries the United States has used copyright and patent to stimulate the production of many forms of creativity. Over time these rights have grown more economically significant; today intellectual property (IP) law is rightly seen not as a fringe topic, but as part of the core of contemporary economic and cultural policy debates. Increasingly, both lawyerly and lay discussions about creativity in the arts and sciences touch upon issues of ownership, control, and incentives, which together comprise the foundational questions of IP law.

Some forms of creative work, however, have never been protected by American law. These forms of creativity exist in IP's "negative space"—by which we mean the territory where IP law might regulate, but (perhaps for accidental or nonessential reasons) does not. The study of these unprotected forms of creativity ought to be of great interest. If we see these creative endeavors languishing as a result of uncontrolled copying, we might decide to extend IP law in order to curtail appropriation and induce investment and innovation. On the other hand, if an unprotected area of creative work thrives in the absence of legal rules against copying, we would do well to know how. We might also ask whether other currently protected forms of creativity could also flourish without expensive and potentially inefficient monopoly protections...